Citation Nr: 1116232
Decision Date: 04/26/11 Archive Date: 05/05/11
DOCKET NO. 09-04 939 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Cheyenne, Wyoming
THE ISSUES
1. Entitlement to an initial disability evaluation in excess of 10 percent for service- connected degenerative joint disease of the right knee.
2. Entitlement to an initial disability evaluation in excess of 10 percent for service- connected degenerative joint disease of the left knee.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Sara Schinnerer, Associate Counsel
INTRODUCTION
The Veteran had active service from January 1978 to October 2006.
This matter comes before the Board of Veterans' Appeals (BVA or Board) from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming.
The Veteran provided testimony at a September 2009 hearing before the undersigned. A transcript of the proceeding is associated with the claims folder.
The Veteran's claim of entitlement for seasonal rhinitis (claimed as sinusitis)
was granted by the RO in an April 2010 rating decision, as 10 percent disabling, effective November 1, 2006. Therefore, the issue is no longer before the Board, as the Veteran has been granted full benefits sought on appeal.
The Board remanded the Veteran's appeal in November 2009. The Board is satisfied that there has been substantial compliance with the remand directives and it may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998).
FINDINGS OF FACT
1. There is x-ray evidence of arthritis of the right knee, with limited motion from 0 to 84 degrees and subjective complaints of painful motion; there are no objective findings of instability, recurrent subluxation, ankylosis, impairment of the tibia and fibula, or semilunar dislocated cartilage with episodes of locking pain and effusion in the joint.
2. There is x-ray evidence of arthritis of the left knee, with limited motion from 0 to 108 degrees and subjective complaints of painful motion; there are no objective findings of instability, recurrent subluxation, ankylosis, impairment of the tibia and fibula, or semilunar dislocated cartilage with episodes of locking pain and effusion in the joint.
CONCLUSIONS OF LAW
1. The criteria for an initial disability rating in excess of 10 percent for service-connected degenerative joint disease of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.40, 4.45, 4.459, 4.71a, Diagnostic Codes 5003, 5010 (2010).
1. The criteria for an initial disability rating in excess of 10 percent for service-connected degenerative joint disease of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.40, 4.45, 4.459, 4.71a, Diagnostic Codes 5003, 5010 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Notice and Assistance
Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 473; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). That burden has not been met in this case.
Nevertheless, the record reflects that the appellant was provided a meaningful opportunity to participate effectively in the processing of his claim such that the notice error did not affect the essential fairness of the adjudication now on appeal. The appellant was notified that his claim was awarded with an effective date of November 1, 2006, the date following discharge from service, and a 10 percent rating, respectively, was assigned for the service-connected right knee and the service-connected left knee. He was provided notice how to appeal that decision, and he did so. He was provided a statement of the case that advised him of the applicable law and criteria required for a higher rating. Moreover, the record shows that the appellant was represented by a Veteran's Service Organization and its counsel throughout the adjudication of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006).
Thus, based on the record as a whole, the Board finds that a reasonable person would have understood from the information that VA provided to the appellant what was necessary to substantiate his claim, and as such, that he had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication was not affected. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).
As for the duty to assist, the Board finds that all necessary assistance has been provided to the Veteran, whereas VA has obtained service treatment records, private treatment records, and VA outpatient treatment records, afforded the Veteran VA examinations, provided the Veteran an opportunity to testify before the Board, and assisted the Veteran in obtaining evidence. Based on the foregoing, all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file, and the Veteran has not contended otherwise.
VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time.
Law and Regulations
The Veteran maintains that he is entitled to initial disability ratings greater than 10 percent for his service-connected right and left knee disabilities. Disability evaluations are determined by the application of a schedule of ratings, which are based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
The governing regulations provide that the higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Moreover, while the Board must consider the veteran's medical history as required by various provisions under 38 C.F.R. Part 4, including sections 4.2, the regulations do not give past medical reports precedence over current findings. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990).
When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. 38 C.F.R. § 4.45.
In the present case, the appeal stems from an initial rating, thus VA must frame and consider the issue as to whether separate or "staged" ratings may be assigned for any or all of the retroactive period from the effective date of the grant of service connection to a prospective rating. See Fenderson v. West, 12 Vet. App. 119 (1999).
In the January 2007 rating action on appeal, the RO granted service connection for degenerative joint disease of the right and left knees and assigned separate 10 percent disability evaluations under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010-5257 for the right knee and DC 5010 for the left knee; each effective from November 1, 2006.
Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. See 38 C.F.R. § 4.27. DC 5010-5257 may be read to indicate that degenerative arthritis is the service-connected disorder, and it is rated as if the residual condition is recurrent subluxation or instability of the knee under Diagnostic Code 5257.
DC 5010 provides that arthritis, due to trauma, substantiated by x-ray findings is to be rated as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5010.
DC 5003 provides that degenerative arthritis, when established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating applies for X-ray evidence of involvement of two or more minor joint groups. A 20 percent rating applies for X-ray evidence of involvement of two or more minor joint groups, with occasionally incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003.
Normal range of motion for the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II.
DC's 5260 and 5261 govern the limitation of motion of the knee. DC 5260 concerns limitation of leg flexion. A 10 percent rating is warranted where flexion is limited to 45 degrees. A 20 percent evaluation is for application where flexion is limited to 30 degrees. 38 C.F.R. § 4.71a, DC 5260.
DC 5261 pertains to limitation of leg extension. A 10 percent rating is warranted where extension is limited to 10 degrees. A 20 percent evaluation is for application where extension is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5261.
Under DC 5257, a 10 percent rating is assigned for slight impairment due to recurrent subluxation or lateral instability of the knee. A 20 percent rating requires moderate impairment due to recurrent subluxation or lateral instability.
A 30 percent rating requires severe impairment due to recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257.
Separate ratings may be assigned for knee disability under Diagnostic Codes 5257 and 5003 where there is x-ray evidence of arthritis in addition to recurrent subluxation or lateral instability. See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98.
The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6.
The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992).
Discussion
In determining whether the next higher 20 percent rating is warranted for either knee, the pertinent evidence of record has been reviewed and a discussion of such evidence follows.
An April 2006 private treatment record shows that the Veteran underwent left knee arthroscopy for his left knee degenerative joint disease.
A September 2006 VA outpatient record included x-rays for both of his knees. The left knee was noted to have early minor marginal spurring. The right knee was noted to have mild degenerative changes more so than the left with probable old Osgood-Schlatter's disease or old injury proximal tibia.
The Veteran underwent a VA examination in November 2006. At the time, the Veteran reported that he was diagnosed with a bilateral knee condition, namely, osteoarthritis, chondromalacia, and patellar misalignment, with the onset in 1980. He reported that his knee gives way. He further reported that he underwent surgery for his right knee condition in 1993, 1994, 1995, 1996, and 2001, and for his left knee in 2005 and 2006. He reported that his knee pain is exacerbated by walking more than two miles or standing for more than 30 minutes, and alleviated by ice. He reported that he was nearly discharged from service for his condition and that it affects everything he does in life.
On examination, there was a scar running vertically along the right knee that measured 8.5 cm in length and 4mm in width. The scar was a lighter coloration than the surrounding tissue, but nontender to motion and without keloid formation. The left knee had two puncture wounds. One measured 1 cm by 1 cm; the other, 1 cm by 0.5mm. The puncture wounds were darker colored than the surrounding skin and without keloid formation. The Veteran complained of pain with maximum extension of the knee and downward pressure on the patella; the examiner did not specify which knee. McMurray's testing was negative. Both knees were stable for varus/valgus and anterior/posterior movement. There were no joint effusions. The diagnosis was mild degenerative joint disease of the left and right knees.
In a May 2007 private treatment record, Dr. B.S. noted that the Veteran stated that both of his knees present problems which are slowly worsening, and thus he is unable to separate as to which knee is more severely impacted. The diagnoses was tri-compartmental degenerative joint disease of the bilateral knees.
In a July 2007 statement, the Veteran indicated that the pain in both of his knees had worsened, impacting every aspect of his life; specifically, the Veteran stated that he has significant knee pain and cannot perform moderate impact activities without severe pain and swelling.
In an October 2008 private treatment record, Dr. M.R. reported that the Veteran indicated that his knees have slowly worsened since his last surgery in 2005.
An October 2008 VA treatment noted included the Veteran's complaint of bilateral knee pain on a level 8/10; worse on the right. He indicated that walking and standing cause pain and that medication such as Ibuprofen is not effective. The pain interferes with the Veteran's sleep and swelling is common. The plan was to consult orthopedics. A November 2008 VA outpatient treatment record regarding the Veteran's request for a second opinion regarding total knee replacement noted his history of multiple knee surgeries. The Veteran reported that he could ride his bike 5-10 miles without much difficulty, but could not play basketball and shoot baskets with his grandson. With impact loading activities, he has pain through the next several days after activity. On examination, there was no swelling, effusion or erythema in either knee. The knees were stable in all directions. The Veteran had some tenderness to palpation over the right medial joint line; not much tenderness on the left knee. Range of motion was within normal limits, good strength and muscle. There was no pain with varus or valgus stress. After the objective examination and review of x-ray studies, the assessment was right knee moderate medial compartment joint space narrowing and left knee tricompartmental degenerative patellofemoral compartment, which appears slightly worse than on previous x-rays.
In a February 2009 VA outpatient treatment record, the Veteran was noted to have a history of degenerative joint disease and a review of the November 2008 assessment. X-rays were noted to show moderate medial compartment narrowing of the right knee with tricompartmental osteophytic changes present and some tricompartmental degenerative joint disease of the left knee. The assessment was right and left knee moderate to severe patellofemoral degenerative joint disease.
In a September 2009 statement, the Veteran indicated that the chronic nature of his bilateral knee condition impacts his life in every way. He further reported that his private physician indicated to him that total knee replacement surgery was inevitable.
In a September 2009 hearing before the Board, the Veteran and his representative testified that the pain in his right and left knees has worsened and that he currently wears a brace to alleviate some of the instability that he is experiencing.
Pursuant to the Board remand, the Veteran was afforded a VA examination in March 2010. At the time, the Veteran reported that his knee problems began while in service; there was no specific injury, however, the first diagnosis was tendonitis. The Veteran further reported that he has undergone multiple surgeries for both knees. He reported experiencing constant daily pain, explaining, he has the inability to do anything without experiencing pain. He experiences occasional popping, as his right knee gives out about once a week; however, the Veteran has not fallen and is able to catch himself. He denied experiencing locking, redness, or swelling. He denied any episodes of dislocation or recurrent subluxation. He had a brace for his right knee. He reported experiencing flare-ups three to four times per month, with pain at a level 8-9/10 and lasting all day. Flare-ups are caused by walking on uneven surfaces or any activity that causes impact on the Veteran's knee joints and are alleviated by resting. The Veteran reported that he had not lost any time from work because of knee complaints.
On examination, the Veteran's knees demonstrated a bony deformity consistent with degenerative changes with scars present on both knees. There was no evidence of muscle atrophy, swelling, joint effusion, or distal edema. There was diffuse joint and perpatellar tenderness. There was no anterior or posterior translocation. There was no medial or lateral opening. On range of motion, right knee flexion was to 85 degrees and extension was to 0 degrees. Left knee flexion was to 110 degrees and extension was to 0 degrees. Upon repetition, right knee flexion was to 84 degrees and extension was to 0 degrees and left knee flexion was to 108 degrees and extension to 0 degrees. The examiner noted that when measuring flexion, the Veteran was unable to flex his right knee to the 90 degree point. However, when sitting in a chair during the interview and getting up and down, it was noted that the right knee would flex just slightly beyond 90 degrees; estimated to about 95 to 100 degrees. There was no change in active or passive range of motion during repeat testing against resistance and no additional losses of range of motion were expected for the bilateral knees due to painful motion, weakness, impaired endurance, fatigue, flare-ups, or incoordination. Regarding stability, medial and lateral collateral ligaments were normal, anterior and posterior cruciate ligaments were normal, and the medial and lateral meniscus as per McMurry's testing was negative. X-rays of the right knee demonstrated tricompartmental osteophytic changes without joint effusion. X-rays of the left knee demonstrate tricompartmental osteoarthritic changes without joint effusion. The impression of both knees was noted as osteoarthritic changes were again identified in both knees; appearance was very similar to previous examination.
Upon examination and review of the Veteran's claims file, the examiner diagnosed the Veteran with traumatic osteoarthritis of the bilateral knees.
Right Knee
The RO has historically evaluated the Veteran's service-connected right knee disability under different hyphenated diagnostic codes as if the residual was either degenerative arthritis or instability. However, instability and degenerative arthritis are separate diagnoses for which separate diagnostic codes are available and for which separate ratings may be assigned. In this regard, based on a review of the evidence, the Board concludes that the Veteran's right knee disability is characterized by arthritis, limitation of flexion, and pain on motion. The evidence of record does not demonstrate any objective finding of instability. Thus, the Veteran is most appropriately rated under DC 5010, for his degenerative arthritis.
As noted, arthritis shown by x-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected.
Upon review of the evidence of record, the Board finds that an initial rating in excess of 10 percent for the service-connected right knee based on limitation of flexion or extension is not warranted. In this regard, the November 2008 and February 2009 VA outpatient treatment records indicate that the Veteran's range of motion for the right knee was within normal limits. The March 2010 VA examination revealed flexion to 85 degrees and extension was to 0 degrees; upon repetition, flexion was to 84 degrees and extension to 0 degrees. As there is no evidence of limitation of extension of his right knee, the Veteran does not warrant a separate compensable rating for his right knee under 5261. While the Veteran has exhibited limitation of flexion of his right knee, it has been at worse, to 84 degrees (with consideration of pain). Absent evidence of limitation of flexion to 30 degrees, the Veteran does not warrant the next higher 20 percent disability evaluation under DC 5260. While the evidence demonstrates slight additional limitation of motion due to pain, the range of motion does not more nearly approximate or equate to flexion limited to 60 degrees or extension limited to 5 degrees, the criteria for a separate noncompensable rating under DC's 5260 and 5261, considering 38 C.F.R. § 4.40, 4.45, and 4.59. As such, the Veteran does not warrant a disability rating in excess of 10 percent under DC's 5260 or 5261.
DC 5256 is not applicable, as the Veteran does not, nor has he ever demonstrated ankylosis of his right knee. Similarly, DC 5257 is not for application in the present case. While the Veteran testified that he experiences instability during the September 2009 hearing before the Board and reported that his knee gives out during both the November 2006 and March 2010 VA examinations, there is no objective evidence of recurrent subluxation or lateral instability contained within the record. Likewise, DC 5258 is not for application in the present case. In this regard, the record does not contain any subjective complaints of locking episodes, the Veteran denied experiencing any locking episodes during the March 2010 VA examination, and there was no noted objective evidence of locking on the aforementioned examinations or treatment records. The evidence of record does not demonstrate impairment of the Veteran's tibia and fibula, thus DC 5262 is not for application in this case. Similarly, as the evidence fails to show genu recurvatum, DC 5263 is inapplicable. As such, the Veteran is not entitled to an initial disability evaluation in excess of 10 percent under DC 5256, 5257, 5258, 5262, or 5263.
Left Knee
The Veteran's left knee is currently rated as 10 percent disabling under DC 5010, degenerative arthritis. Upon review of the evidence of record, the Board finds that an initial rating in excess of 10 percent based on limitation of flexion or extension is not warranted. In this regard, the November 2008 and February 2009 VA outpatient treatment records indicate that the Veteran's range of motion for the left knee was within normal limits. The March 2010 VA examination revealed flexion to 110 degrees and extension was to 0 degrees; upon repetition, flexion was to 108 degrees and extension to 0 degrees. As there is no evidence of limitation of extension of his left knee, the Veteran does not warrant a separate compensable rating for his left knee under 5261. While the Veteran has exhibited limitation of flexion of his left knee, it has been at worse, to 108 degrees (with consideration of pain). Absent evidence of limitation of flexion to 30 degrees, the Veteran does not warrant the next higher 20 percent disability evaluation under DC 5260. While the evidence demonstrates slight additional limitation of motion due to pain, the range of motion does not more nearly approximate or equate to flexion limited to 60 degrees or extension limited to 5 degrees, the criteria for a separate noncompensable rating under DC's 5260 and 5261, considering 38 C.F.R. § 4.40, 4.45, and 4.59. As such, the Veteran does not warrant an initial disability rating in excess of 10 percent under DC's 5260 or 5261.
DC 5256 is not applicable, as the Veteran does not, nor has he ever demonstrated ankylosis of his left knee. Similarly, DC 5257 is not for application in the present case. While the Veteran testified that he experiences instability during the September 2009 hearing before the Board and reported that his knee gives out during the November 2006 VA examination, there is no objective evidence of recurrent subluxation or lateral instability contained within the record. Likewise, DC 5258 is not for application in the present case. The record does not contain any subjective complaints of locking episodes, the Veteran denied experiencing any locking episodes during the March 2010 VA examination, and there was no noted objective evidence of locking episodes on the aforementioned examinations or treatment records. The evidence of record does not demonstrate impairment of the Veteran's tibia and fibula, thus DC 5262 is not for application in this case. Similarly, as the evidence fails to show genu recurvatum, DC 5263 is inapplicable. As such, the Veteran is not entitled to an initial disability evaluation in excess of 10 percent under DC 5256, 5257, 5258, 5262, or 5263.
As the preponderance of the evidence is against the claim for an increased rating for either the right or left knee, the benefit of the doubt rule does not apply, and the claim for increased ratings must be denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 50.
Scars
As the Veteran's left and right knee disabilities include scars from multiple surgeries, the Board may consider whether he is entitled to separate ratings for scars. During the course of the appeal, the rating criteria for evaluating skin disorders under 38 C.F.R. § 4.118, DCs 7800-7805 were amended effective October 23, 2008. However, the revised criteria apply only to applications for benefits received by VA on or after the effective date of October 23, 2008. See 73 Fed. Reg. 54,710 (Sept. 23, 2008). Because the Veteran's claim was received prior to October 23, 2008, the revised criteria are not for application in this case.
The October 2006 VA examination included findings related to the scars on both knees. The right knee scar was nontender, without keloid formation; the left knee puncture wound scars were noted to be darker-colored than surrounding skin, but without keloid formation. There is no evidence that the scars are deep, cause limited motion, unstable or painful on examination. Thus, separate compensable evaluations for scars of either knee are not warranted. 38 C.F.R. § 4.118, DC 7801-7805 (2008); Esteban v. Brown, 6 Vet. App. 259 (1994).
Extraschedular Considerations
During the November 2006 VA examination, the Veteran reported that he was nearly discharged from service for his bilateral knee condition and that it affects everything he does in life. Similarly, in a July 2007 statement, the Veteran indicated that his knees impact every aspect of his life; specifically, the Veteran stated that he has significant knee pain and cannot perform moderate impact activities without severe pain and swelling. Likewise, in a September 2009 statement, the Veteran indicated that the chronic nature of his bilateral knee condition impacts his life in every way. At the most recent examination in March 2010, the Veteran indicated that he had not missed any time from work because of knee complaints. Nevertheless, the Board must adjudicate the issue of whether referral for an extraschedular rating is warranted. See Barringer v. Peake, 22 Vet. App. 242 (2008).
Here, the record does not establish that the rating criteria are inadequate for rating the Veteran's service-connected right and left knee conditions. The discussion above reflects that the Veteran's bilateral knee disabilities are primarily manifested by x-ray evidence of arthritis, pain, and limitation of motion. Many of the applicable diagnostic codes used to rate the Veteran's disabilities provide for ratings based on limitation of motion. See Diagnostic Codes 5003, 5260, 5261. The effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. The effects of the Veteran's disabilities have been fully considered and are contemplated in the rating schedule; hence, referral for an extraschedular rating is unnecessary at this time. Thun v. Peake, 22 Vet. App. 111 (2008).
ORDER
Entitlement to an initial disability rating in excess of 10 percent for service- connected degenerative joint disease of the right knee is denied.
Entitlement to an initial disability rating in excess of 10 percent for service- connected degenerative joint disease of the left knee is denied.
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M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs